BC Supreme Court finds designation of parking stalls as limited common property to be a mistake, orders correction of strata plan
January 2, 2018
BY Kevin Zakreski
In Chow v The Owners, Strata Plan NW 3243, 2017 BCSC 2331 the Supreme Court of British Columbia considered the application of section 14.12 of the Strata Property Regulation (which allows for the correction of errors in a strata plan) to a dispute over parking stalls. The court found that the section’s conditions were met and ordered correction of the strata plan, removing designations of limited common property.
The case turned on
classification of parking spaces in a strata complex called Bristol Gardens, located in Richmond, British Columbia. At issue is the designation of certain carport-type parking spaces as either common property, to be used by visitors to the complex, or limited common property, for the exclusive use of owners of immediately adjacent units.
Marketing of strata lots from the early days of the strata property characterized the carports as including parking spaces for visitors, but the strata plan showed the carports as being designated limited common property.
The case had an active procedural history:
Litigation concerning the impugned parking spaces commenced in 2014 and initially led to a judge of this Court hearing two petitions, one brought by the owners claiming exclusive use of the carports, and another brought by the majority of owners who sought classification of the carports as common property. In Reasons indexed as Chow v. The Owners, Strata Plan NW 3243, 2015 BCSC 1944 (CanLII), Mr. Justice Smith found for the owners claiming exclusive use, and gave effect to the designation of the carports as limited common property. The majority owners appealed that order, and in Reasons indexed at 2017 BCCA 28 (CanLII), the Court of Appeal allowed the appeal and remitted the matter to this Court for a new hearing.
The Court of Appeal found that the chambers judge had been led into error by the manner in which the petitions were argued, and thus had not decided the fundamental preliminary question, namely whether or not the labelling of the carports as “limited common property” on the strata plan was an error. If the court determined that the “limited common property” designation was a mistake, such error could potentially be corrected pursuant to s. 14.12 of the Strata Property Regulation.
The court of appeal sent the case back to the supreme court for consideration of whether the strata plan contained an error. This judgment was intended to “definitively” answer the court of appeal’s question about the designation of limited common property.
The court noted near the start of its reasons that:
The result of the additional evidence which has been filed by the majority owners is that there is a substantially more robust evidentiary record before me than was before the original hearing judge. In addition, the arguments advanced by the parties in this hearing have been focused on the essential question of potential error in the strata plan, and if I so find, how that finding might affect the equitable positions of the litigants.
I have concluded that there was an error in the strata plan at the time it was created by the land surveyor, David Dyck, and deposited in the Land Title Office. In particular, I am satisfied that Mr. Dyck mistakenly labelled the carport parking stalls as “limited common property”, as opposed to “common property”, which was clearly how the developer intended to designate them.
Having found a mistake, the court moved on to consider whether the mistake engaged section 14.12 of the regulation:
Unfortunately, s. 14.12 itself provides little guidance on this question. It simply defines “error” as “any erroneous measurement or error, defect or omission in a registered strata plan.” At issue here is clearly not an erroneous measurement. Nor does it seem to be an omission. It must then, if it is to fall within the meaning of “error” in the section, be either an “error” or “defect”. The potential circularity of the exercise is obvious and unhelpful. I note that one of the definitions of “error” in the Shorter Oxford English Dictionary is: “something done incorrectly because (of) ignorance or inadvertence; a mistake.”
In my view, what was done here by Mr. Dyck is precisely that, namely a mistake, something which he did incorrectly through inadvertence. He, through inadvertence, mistakenly labelled the carport parking stalls as “limited common property for the exclusive use of” certain owners, as opposed to “common property” for use as visitor parking. The latter was clearly what was envisaged by the developer and represented to Richmond City Council at the time building approval was obtained. It was also what was contained in the Disclosure Statement, which was prepared prior to the strata plan.
In the result, the court concluded
the appropriate disposition is to direct the registrar to correct the error in the strata plan. I have reached that conclusion for two primary reasons: first, the fact that there is sufficient material before me to be satisfied, which I am, that the “common property” designation is the correct one; secondly, it is not in the interests of any of the parties that there be further adjudicative proceedings to resolve this question. The litigation to date has no doubt been costly and time-consuming for all concerned. It is appropriate that this Court reach a decision which provides a final answer to the parties.